RIGHTS

Since the seventeenth century, problems connected with rights have steadily engaged the attention of political and legal philosophers. For medieval philosophers the problems of political ethics were problems not of rights but, rather, of the duties a man owed to his lord, his king, his church, or his God, by virtue of his role and function in the universal order. Medieval lawyers, it is true, might challenge encroaching authority by appealing to the ancient and customary privileges or "liberties" appertaining to status or to corporate communities like cities and guilds. In the seventeenth and eighteenth centuries, however, such considerations gave way to notions like "an Englishman's birthright" or, still more personal and universal, "natural rights." Thereafter it was commonly held that it was the proper task of the state and of positive law to safeguard such rights, lists of which were drawn up in documents like the American Bill of Rights and the French Declaration of the Rights of Man for the guidance and control of governments.

The idea that a man could have a right which, as natural, inalienable, and indefeasible, had some kind of sanctity and validity transcending that of ordinary positive law led philosophers to speculate about what kind of thing a right might be. What sort of assertion is it to say that X has a right to R, and what kind of criteria would have to be satisfied for such a proposition to be true?

Juristic theories of rights. Many philosophers and jurists have treated questions about the nature and criteria of rights as if they asked what facts were referred to when one said "X has a right to R." Spinoza, for instance, tried to give a consistent account, in terms of power, of all instances where rights were ascribed. Thus a man's natural right amounted to the power he could exercise over another; a sovereign's right was the power he exercised by virtue of the combined power of all the individuals who were prepared to support him; and the individual's legal rights were the powers he had by virtue of the sovereign's support in upholding the law. Again, T. H. Green described an individual's right as "a power of acting for . . . what he conceives to be his own good, secured to an individual by the community."

A right, however, is not and does not necessarily imply a power (except, perhaps, in the sense of a legal competence like, for instance, the power to make a will). For a man may have rights he is powerless to enforce if the courts are corrupt or his opponents too powerful to risk offending. One might say perhaps that his rights are hypothetical powers -- what he would be able to achieve if he were able and chose to appeal to the courts and if the courts acted according to the law. But this would be the same as saying that his rights are the powers he would enjoy if he had his rights. Rights, in other words, may explain why persons have the powers they do, but they are not identical with these powers.

Legal realists like Jerome Frank, K. N. Llewellyn, or W. W. Cook have maintained that statements ascribing rights really predict what as a matter of fact a court will do or what a man can reasonably expect, given such predictions. However, although it may be of no professional interest to the legal consultant, it is not absurd to say that a man has rights but no expectation of succeeding in court. It would be, for instance, a perfectly intelligible way of complaining of injustice, either in the law or in its administration. As with a power, to decide that a man has a right is under normal conditions to provide a warrant for a prediction and an expectation, but it is not identical with nor a sufficient ground for either of these.

A right is commonly said (by Paul Vinogradoff, for instance) to be a claim upheld by the law. As in the case of "power," however, there is an ambiguity between the positive and the normative sense of "claim." If by a claim were meant a demand actually made, it might be objected both that men possess rights to things they never claim, and that it makes sense to talk of the rights of infants incapable of demanding anything. On the other hand, "to have a claim," as against "to make a claim," means that if one were to make a demand, it would be justified or, at least, defensible. But as with "power," this would then locate the concept not in the language of description but in that of norms. Vinogradoff may well be right in saying that men have acquired legal rights only by claiming them, yet it would be a mistake to confuse a historical fact with an account of the meaning of "rights."

A rather similar confusion underlies the view that a right is an interest protected by the law (Rudolf von Jhering). This view is unsatisfactory whether what is meant by an "interest" is what a man desires or whether it means what it would be to his advantage to have. A man may have rights to what he does not desire. It is not a condition of my having a right to the repayment of a debt, for instance, that I should want it repaid. Equally, however, I may have rights that are not to my advantage. A right to drink myself to death without interference would not be logically absurd. Though, generally speaking, our rights do protect our interests, they are not themselves protected interests.

Rights and duties. Bentham and Austin defined rights in terms of duties. "Every right," says Austin, ". . . rests on a relative duty . . . lying on a party or parties other than the party or parties in whom the right rests" (Province, 1954 ed., Footnote p. 285); for Bentham and Austin, a duty exists only where the law imposes (and enforces) a sanction for a breach of it. Bentham wrote in his Fragment on Government (1776), "Without the notion of punishment . . . , no notion could we have of either right or duty." There are two points here: first, whether duties really depend on consequential sanctions for their meaning or only for their effectiveness, or perhaps for neither; second, whether every right has its correlative duty, such that the right of X can always be stated without alteration of meaning as a duty of Y. As to the first point, there is no internal contradiction in the notion of a duty without a sanction. Indeed, English administrative law has frequently placed statutory duties upon authorities while barring judicial review and providing no alternative remedy or sanction. Outside the sphere of law, it certainly makes sense to talk of moral duties without sanctions. What one ought to do cannot properly be equated with what one must do to avoid a penalty.

The correlation of rights and duties raises more difficult questions. If to ascribe a right is not to attribute a socially supported power or, indeed, to describe any actual or hypothetical set of facts about human behavior, can one say that it must be a way of stating the provisions of a system of rules and therefore a way of prescribing conduct? Yet a right implies neither what a man must nor what he ought to do, but what he may do if he chooses. It can be reconciled with an exclusively prescriptive conception of law only by identifying every right with an obligation in reverse -- "X has a right to $10 from Y" being exactly equivalent to "Y has a duty to (that is, shall) pay X $10 if X so chooses."

Since Austin wrote, the concept of a right has been subjected to many patient and subtle analyses. That of Wesley Hohfeld, perhaps the best known, has provided a general framework for later work (Albert Kocourek's, for instance) and has generated a considerable and ingeniously critical literature. Hohfeld distinguished four different concepts of right and identified each with its appropriate "jural correlative." He uses the word "right"
specifically for the case in which one says "X has a right (or claim or demand-right, as some writers put it) to $10 from Y"; this has as its correlative a duty (or one might say, specifically, an obligation of Y to X to do some particular act that X desires him to do). Hohfeld's second concept of right is a "privilege" or a "liberty," the opposite of a duty, and has as its correlative a "no-right." "X has a liberty to do L" entails both that he has no duty to do or not to do L and that Y has no right (that is, no basis of claim) that X shall or shall not do it. Consistent with this, however, is that Y has no duty to refrain from trying to prevent X's doing L. This is the case with two people in legitimate competition. So a no-right is distinct from a duty not to interfere, and correlatively X may possess both a liberty to do L and a right (claim) that Y (and others) should not interfere. The third case Hohfeld distinguishes as a "power," a legal capacity for altering the jural relations of another person, as, for instance, the power to make a will, to transfer ownership by sale, to appoint an agent. The correlative of a power is the "liability" (called by some writers a "subjection" and by Roscoe Pound a "risk") that one's jural relations may be changed, for better or for worse, at the instance of the other person. According to the fourth concept X has an "immunity" (that is, has no liability) when Y is "disabled" from making (has no power to make) changes in X's jural relations.

In this account, the relations that Hohfeld calls correlative are, in fact, identities; a right (claim) is a duty looked at from the standpoint of the other term in the same relationship. However, this does not imply that to every duty there necessarily corresponds a right. What characterizes the right-duty relationship is that Y is obliged to act only because X demands that he should. But there are some duties, such as duties of benevolence, where no one has a corresponding right to demand that they be performed.

A distinction of some importance might be made between first-order relations (that is, claims-duties and privileges-no-rights) and second-order relations (that is, powers-liabilities and immunities-disabilities). Whereas first-order relations can be expressed in terms of prescriptions or the absence of them (permissions), second-order rules and relations define the conditions under which actions shall be legally significant and therefore under which new rules and changes in legal relations can be made. If powers and immunities can be treated as rights at all (and both the power to offer for sale and the immunity of parliamentarians from libel proceedings are commonly referred to as rights), then some rights are neither correlative to sanctioned duties nor expressive of the absence of such duties. Moreover, such rights require a conception of law which is not simply prescriptive and permissive but is also regulative, in the sense that law lays down the conditions under which persons may enter into new binding relations with one another, by contract, marriage, and so on.

Hohfeld believed that although many jural relations could be satisfactorily analyzed only as complex bundles of relations of different types, nevertheless his scheme exhausted all the fundamental types. In fact, however, there are some that do not fit into it very comfortably. What kind of a duty, liability, no-right, or disability would correspond, for instance, to the right to vote? Though it may be possible to break it down into a collection of constituent basic relations, one could do so only at the cost of losing the point of the right, namely, participating in the choosing of a representative.

Because Hohfeld wanted to insist on the differences between natural and legal relations, he sometimes wrote as though there were a world of legal relations alongside the world of natural relations. The Swedish realists Axel Hägerstrom and Karl Olivecrona, anxious to deny the existence of such a metaphysical world, roundly declared that rights and duties are purely imaginary or fictitious powers or bonds, existing only in men's minds. This, however, is no less misleading than Hohfeld's theory. It is not that rights are illusory things but that they are not things at all or, rather, that accounts of them modeled on accounts of things like chairs, or even relations like proximity or length, are misconceived.

H. L. A. Hart has accordingly argued that it is a mistake to ask for a definition of "a right" (and of such similar words as "duty" and "corporation") because "legal words can only be illustrated by considering the conditions under which statements in which they have their characteristic use are true" ("Definition and Theory in Jurisprudence," p. 60). The expression "a legal right" can be elucidated only by examining the conditions for the truth of a proposition like "X has a legal right to $10 from Y." These conditions are that (1) there is a legal system in existence, and (2) under the rules of that system some person Y, given the events which have actually happened, is obliged to do or abstain from some action providing X or his agent choose that he should. Under these conditions, the statement "X has a right" is used to draw a conclusion of law in a particular case falling under those rules. This applies, of course, only to a right in the sense correlative to duty. But Hart claims that a similar illustration could be constructed for liberties, powers, and immunities.

Hart's elucidation is limited, however, to particular ascriptions; it throws no direct light, for instance, on the statement in the second amendment to the U.S. constitution that "the right of the people to keep and bear arms shall not be infringed" or on the one in the sixth amendment that "in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial." In both cases, the word "right" is not used to draw a conclusion of law but to state a rule of law.

A general statement of rights differs from a corresponding "conclusion of law" in that a general statement cannot be elucidated in terms of a duty but at best only in terms of an obligation of one class of persons to another, defeasible in particular cases by any of a number of pleas or excuses. A general right is thus a ground of claim, not a license to infer what ought to be done. Nevertheless, A. I. Melden was correct to object to the term "prima facie right," first used by W. D. Ross; for it misleadingly suggests that the genuineness of such rights is in doubt. A right is no less a genuine ground of claim for being rightly overridden in particular instances.

Moral rights and natural rights. The only account a positivist can give of moral rights is in terms of custom or convention. So Bentham and Austin treated moral rights as the correlatives of duties to which sanctions were attached by public opinion (or allegedly by God) rather than by the law. Hegelians like T. H. Green and Bernard Bosanquet have approached the question from a different angle. Morality, they have said, is a developing Idea, manifest in social experience and institutions. It is not simply that whatever public opinion sanctions is moral but that the convictions of a society represent the most advanced stage in the unfolding of a rational morality. Individuals do not make up their own moral convictions; rather, the society's morality forms their moral consciousness. Green admitted that an individual might have a right that was not generally recognized but only if it was a necessary condition for the attainment of some end generally acknowledged as good, to which, therefore, the community was in a sense already committed.

However, reformers very commonly do claim that an underprivileged group has moral rights so far unrecognized. Certainly such a claim is not likely to be politically successful if it cannot be sustained in terms of widely accepted goals or principles. But still, one is not talking nonsense if one says that slaves in ancient Rome had a moral right to freedom even though very few Romans would have understood the claim or acknowledged moral aims that required it. If one accepts the view that a moral claim, judgment, or decision is one that can be supported by some kind of rational argument, then attempts to elucidate "moral rights" in terms of opinion are clearly misplaced.

To ascribe a legal right to a person is, if Hart is right, to reach a conclusion of law, but to ascribe a moral right is not to reach a conclusion about what ought to be done but only to make a relevant claim. Thus A may have a right to gratitude and special consideration from B, whom he has often helped in the past, but B's obligation to A does not mean that his duty in every case is to prefer A's interest to every other. A's right, then, is not a conclusive ground of claim. Indeed, one might want to say on occasion that although A has a right, he would do wrong to press it and that although B has an obligation to A, he would do wrong to let it influence him. A right, in short, is something to be taken into account; it is not a conclusion of moral duty.

There is, however, a long tradition in political philosophy to support the view that there are some rights -- natural rights -- that all men possess equally and that are in some sense inalienable and indefeasible. According to John Locke, natural rights include the rights to life, liberty, and property. His analysis of these concepts is sketchy, his purpose being to use them as grounds for attacking governmental acts that allegedly infringe them. However, for Locke, as for Hobbes, the natural right to liberty meant at least a liberty to do whatever there was no rule or moral reason against doing.

It is arguable that such a right is in fact a formal principle of procedure in rational and moral argument rather than a right to do anything specific. It places the onus on justifying interference, not on showing why one should be let alone. And this, indeed, is part at least of what is meant by saying that someone is a moral person. For if one denied a man this right, it would be open to others to use him, like their beasts and their tools, for their own purposes and as they chose, without being called upon to show by what right they did so. This would be to acknowledge with Aristotle that some men are slaves by nature. To recognize a man as a moral person is thus to recognize that he has interests and not merely functions and thus to concede at least this minimal right.

The right to freedom couched in this very general form gives no clue, of course, to what might be a good reason for interference. Hart defends, if somewhat tentatively, a more substantial right. To have a moral right, he says, "entails having a moral justification for limiting the freedom of another person and for determining how he should act" ("Are There Any Natural Rights?," p. 183). To have a natural right to freedom entails, first, a liberty to do anything which does not coerce, restrain, or injure another person (for without this limitation the right could not be equal for all). But it also entails a right that everyone else forbear toward oneself in these respects except to prevent one's coercing, restraining, or injuring others. Rights, Hart explains, are claimed mainly in two types of situations: when the claimant has some special justification for interfering himself or when he is resisting someone else's interference. Rights of the first type arise from special transactions or relations -- from promises or by special authorization, for instance, or from the relations of persons participating in a common enterprise, each having the right in fairness against the others that as they benefit from his submission to the rules, they shall also submit to them. In Hart's view, the last relation is the moral ground of political obligation and is the element of truth in social contract theories.

General rights, in Hart's view, such as the right to say what one thinks or to worship as one pleases, are really only special exemplifications of the equal right to be free. So to assert a general right is to claim in respect of some particular kind of activity each man's equal right to be free, provided there are no conditions constituting someone else's special right to limit his freedom in that respect. Moreover, Hart maintains that the equal right to freedom is invoked indirectly by every claim to a special right. For my promises and authorizations give others a right to interfere with me not because the purpose of the interference is necessarily good but simply because I have chosen that they may interfere. The limitation on my freedom presupposes my freedom. (This, it might be added, is the core of traditional consent theories of political obligation, for if all men are by nature free and equal, what authority could one man have over another, unless by consent?) Mutual restrictions in a common enterprise also presuppose the equal right to freedom, because only thus can there be fair and equal distribution of restrictions, and therefore of freedoms, among participants.

There is, however, another class of special rights, which Hart mentions but which he does not reconcile with the equal right to freedom -- namely, rights arising from special but apparently nonconsensual relations. Locke dealt with the same example of such a right that Hart uses, that of parents to the obedience of their children, by making rationality a condition for the right to freedom and by making the parents' right consensual as soon as children reach the age of reason. It would be more difficult, perhaps, to reconcile with the equal right to freedom the instance suggested by Melden -- namely, a parent's right to special favorable consideration from a child -- which, it
seems, is neither consensual nor extinguished merely by the child's growing up.

Both Melden and Hart treat ascriptions of moral rights as belonging to a different kind of moral discourse from judgment of what one ought to do. For Hart, to say that every man has an equal and natural right to freedom is not to say that it is never one's duty to restrain another man unless one has his authorization or consent. It is, rather, that on those occasions when a person has such a duty, he does not act as of right, and the person restrained is correspondingly under no obligation to him in particular to submit; he would have as much or as little reason to submit to anyone else whatsoever. So while a man restraining another man from torturing an animal could claim a right to do so only if the man had consented in advance to being restrained by him in particular, he could properly rely, nevertheless, on a general duty to prevent unnecessary cruelty, to override the obligation he owes to the man not to interfere with his freedom. The interference must be justified on its substantial merits, whereas to have a right to act is to have a justification of another kind, irrespective of the moral quality of the act.

If we accept this account, we can also accept the view that at least some natural rights are indefeasible and inalienable. Locke held that it is a man's natural right that his property shall not be interfered with without his consent, but he also held that in an emergency a man's house might be destroyed without his consent to prevent the spread of a fire. According to the Hart-Melden view, this would not be an inconsistency, for the right would remain unimpaired but would be outweighed as a moral consideration by a more urgent duty. So a right becomes a special kind of moral consideration cited to justify restraining or interfering with others or to protest against their interference with oneself; it is different in kind from utilitarian considerations or rules against lying or cruelty, which concern the moral value of the act itself or of its consequences.

Human rights. Hart's account of natural rights deals with those traditionally associated with liberal individualism. Nowadays, however, rights are commonly asserted not only to freedom from interference of various kinds but also to positive benefits (education, a decent standard of living, medical treatment). Rights of this kind are different in that though they appear to make a very definite claim, the correlative duty seems to rest neither on individuals at large (as with freedoms) nor on anyone in particular. To say, as does the 1948 UN Universal Declaration of Human Rights, that "everyone, as a member of society, has the right to social security" (article 22) and "to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing" (article 25), is not to say that his government has a duty to provide these things; many who subscribe to this declaration would deny that such services were a government's proper business. Rather, statements of this kind provide, in the words of the Preamble, "a common standard of achievement for all peoples"; that is, they are canons by which social, economic, and political arrangements can be criticized. Human rights, in short, are statements of basic needs or interests. They are politically significant as grounds of protest and justification for reforming policies. They differ from appeals to benevolence and charity in
that they invoke ideals like justice and equality. A man with a right has no reason to be grateful to benefactors; he has grounds for grievance when it is denied. The concept presupposes a standard below which it is intolerable that a human being should fall -- not just in the way that cruelty to an animal is not to be tolerated but, rather, that human deprivations affront some ideal conception of what a human life ought to be like, a conception of human excellence. It is on the face of it unjust that some men enjoy luxuries while others are short of necessities, and to call some interests luxuries and others necessities is implicitly to place them in an order of priorities as claims. Upsetting that order then demands to be justified. Human rights are the corollary, then, of the equally modern notion of social justice.

Bibliography

RIGHTS IN LAW

Austin, John, The Province of Jurisprudence Determined. 1832; London, 1954. The 1954 edition was edited with an introduction by H. L. A. Hart.

Hohfeld, Wesley N., Fundamental Legal Conceptions. 1919; New Haven and London, 1964. The 1964 edition was edited, with an introduction, by Walter W. Cook. An extensive bibliography of the critical literature on Hohfeld's theories is given in the Dias work cited above.